Appeal No. 1996-1372
Application No. 08/003,659
contain polyphenylene ether resin and/or hydrogenated alkenyl aromatic compound/conjugated diene
block copolymer. There is no suggestion or disclosure in Shibuya to make a Shibuya resin composition
without polyphenylene ether and/or hydrogenated alkenyl aromatic compound/conjugated diene block
copolymer.
Further, as noted by appellants, claim 1 contains the language “consisting essentially of.” The
claim phrase “consisting essentially of” excludes ingredients that would “materially affect the basic and
novel characteristics” of the claimed composition. In re Herz, 537 F.2d 549, 551-52, 190 USPQ
461, 463. In construing the phrase “consisting essentially of” in claims, it is necessary and proper to
determine whether the specification reasonably supports a construction that would include additives
described in a reference but not required by the claims. We also find it helpful in this appeal to consult
the prosecution history.
Reviewing the specification, we find that
[t]he term ‘polypropylene resin’ as used in this specification and claims means
not only a polypropylene homopolymer but also a polymer composed predominantly of
propylene, particularly a polymer composed of not less than 50% by weight, preferably
not less than 80% by weight, of polypropylene. As examples of the latter polymer,
there may be mentioned propylene-ethylene random copolymer, propylene-ethylene
block copolymer, polymer blends of said polypropylene resin with a small proportion of
a thermoplastic resin, such as high-density polyethylene, polybutene-1, poly-4-
methylpentene-1 or the like. [Paragraph bridging pages 24-25.]
and
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